Section 2 of the Voting Rights Act: Vote dilution and vote deprivation

This election explainer was written by experts from Election Law at Ohio State, a program of the Moritz College of Law. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

The Voting Rights Act of 1965 is widely considered to be the single most important federal statute protecting the right to vote. The act contains a number of important provisions, but today it is Section 2 of the act that continues to have the greatest impact. Adopted essentially as an enforcement mechanism for the 15th Amendment’s guarantee that the right to vote cannot be abridged “on account of race, color, or previous condition of servitude,” Section 2 allows voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of their race, color or membership in a language minority group.

Initially, the scope of Section 2’s potential impact was unclear. Then, in 1980, the Supreme Court held in City of Mobile v. Bolden that anyone seeking relief under Section 2 had to prove that the claimed abridgement of voting rights had been intentionally motivated by racial bias. Because this was a difficult burden, this interpretation of the act amounted to a significant limitation of Section 2. However, Congress responded quickly with an amendment to the law.

As amended in 1982, Section 2 now provides that a voting process or requirement that results in the abridgement of the right to vote on account of a voter’s race, color or language minority status is unlawful, whether or not an intent to discriminate can be proven. The revised statute further provides that whether a discriminatory result has occurred requires considering the “totality of the circumstances” to determine whether the challenged voting restriction has abridged protected voters’ ability to participate equally in elections and to elect representatives of their choice.

Section 2 has given rise to both “vote dilution” claims and “vote deprivation” claims. Vote dilution claims, which typically involve redistricting schemes or at-large voting systems, have produced a complicated judicial doctrine resulting from several high-profile Supreme Court decisions. Legislative history of the amendment to Section 2, primarily in the form of a Senate Judiciary Committee report, offered a number of factors that courts could consider in evaluating the totality of the circumstances. In 1986, in Thornburg v. Gingles, the Supreme Court reviewed these factors in clarifying the test for a vote dilution claim. The court held that a successful claim requires showing that: (1) the affected minority group is sufficiently large to elect a representative of its choice; (2) the minority group is politically cohesive; and (3) white majority voters vote sufficiently as a bloc to usually defeat the minority group’s preferred candidates.

In subsequent cases, the court has ruled that Section 2 does not require a state to maximize the number of districts in which a minority group can elect preferred candidates (Johnson v. DeGrandy, 1994), and that, to satisfy the first Gingles requirement, the minority group must show that it could constitute a majority in some hypothetical district, not simply that it could serve as the swing vote in a competitive district (Bartlett v. Strickland, 2009). Other cases (including Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris, both in 2017) have considered the extent to which a fear of Section 2 liability can justify drawing district lines primarily on the basis of race, when a separate line of Supreme Court jurisprudence (beginning with Shaw v. Reno, 1993) establishes that using race to draw districts can violate the 14th Amendment’s equal protection clause.

With respect to vote deprivation claims, in one early case (Richardson v. Ramirez, 1974) the Supreme Court held that felon disenfranchisement laws did not violate Section 2, in part because the 14th Amendment expressly countenances restricting the right to vote on the basis of “participation in rebellion, or other crime.” Most Section 2 vote deprivation claims, however, have not reached the Supreme Court, even though the lower federal courts have struggled with a host of interpretive issues, particularly in light of the 1982 amendment that permitted results-based claims. It is a thorny problem to decide whether a voting process whose effect is to exclude a minority voter from participating in an election amounts to a violation of Section 2, under the “totality of the circumstances” test, when some nonminority voters are also excluded by the same process (as, for instance, by a voter identification requirement with a disproportional impact on lower-income voters).

Furthermore, during the past few years, Section 2 vote deprivation claims have become more prevalent because of the Supreme Court’s 2013 decision in Shelby County v. Holder. Shelby County effectively nullified Section 5 of the Voting Rights Act, which had forestalled certain jurisdictions (primarily in areas with a history of discriminatory voting laws) from implementing proposed changes to their voting laws until they could demonstrate that the changes would not disadvantage minority voters. With Section 5 a nullity, litigants have turned to Section 2 to fill the void, but under Section 2 the burden now is on those challenging the voting process to prove that it causes vote deprivation on the base of race.

Recent Section 2 vote deprivation issues confronting lower courts have included whether voter identification requirements might, in some circumstances, result in a deprivation of the right to vote on account of race; whether rules against counting provisional ballots if they were cast outside of the voter’s correct precinct disenfranchise minority voters more than nonminority voters; and whether rules surrounding mail-in voting, including prohibitions on “ballot harvesting,” might differentially impact minority voters.

Indeed, earlier this year the ballot harvesting issue deeply divided the U.S. Court of Appeals for the 9th Circuit. In January, the full court reversed an earlier decision by a panel of the court and concluded that a 2016 Arizona law that prohibited the practice of collecting and returning a number of absentee ballots in a batch had a disproportionate impact on Arizona’s minority voters, and therefore violated Section 2. A cert petition filed by the Arizona attorney general is pending at the Supreme Court. But this is only one potential Section 2 issue that could reach the Supreme Court before the November election.